IRISE

Interdisciplinary Research Incubator for the Study of (In)Equality

Critical Race Theory and Empirical Methods Symposium

The Critical Race Theory & Empirical Methods (eCRT) Symposium was a gathering of scholars in law, the social sciences, and humanities from around the nation to consider the challenges, opportunities, and possibilities associated with efforts to blend empirical research and Critical Race Theory.

The symposium took place on Wednesday, June 18, 2014 in the Anderson Academic Commons at the University of Denver.

The eCRT symposium included panels where leading scholars discussed two different sites for thinking about how Critical Race Theory and empirical methods inform one another. To learn more about each session, see the expandable agenda below.

Welcome

Tom Romero offered the welcome address. Romero is Professor of Law and Assistant Provost of IR Research and Curriculum Initiatives at the University of Denver.

Introductory Address

Osagie K. Obasogie, provided participants with an overview of the eCRT project. Obasogie is Professor of Law at University of California, Hastings with a joint appointment at UCSF Department of Social and Behavioral Science, and was the organizer of the eCRT symposium.

Panel One: Race, Racism, and "Private' Offerings"

Daria Roithmayr:Reproducing Racism: Using Empirical Research to Theorize About Race, Class and Structure.Laura Foster: The Making and Unmaking of Patent Ownership: Technicalities, Materialities, and Subjectivities.Shu-Yo Oei: The New Human Equity Transactions.

Daria Roithmayr's Discussion Abstract

Daria Roithmayr is the George T. and Harriet E. Pfleger Chair in Law at the University of Southern California Gould School of Law.

Discussion Title:Reproducing Racism: Using Empirical Research to Theorize About Race, Class and Structure.

In my recent book, Reproducing Racism, I argue that racial disparity persists because it has become self-reinforcing, reproducing itself automatically from generation to generation even in the absence of intentional discrimination.

In the second part of the book, I focus on a set of positive feedback loops that connect the dramatic disparity of Jim Crow and slavery to modern racial gaps in jobs, housing and education. I look at four different types of racialized "networks" that function to reproduce the early unfair advantage that whites gained by legally excluding blacks and Latinos: (i) Wealthy white families pass down their ill-gotten wealth via house down payments and college tuition to their children, which in turn enables them to earn more wealth; (ii) Wealthy white neighborhoods use their wealth to fund public schools that then turn out wealthy white neighbors. (iii) In social networks, whites with lucrative jobs informally refer their friends, who in turn refer their friends, etc. (iv) In institutions like workplaces and higher education, whites adopt hiring and admission standards that favor their own. I conclude that racial inequality might now be locked in place, unless policymakers immediately take drastic steps to dismantle these dynamic feedback loops, in which early unfair advantage becomes ongoing unfair advantage. In this talk, I will focus on the way in which empirical research helps us to understand the relationship between race and these four kinds of networks, which structure the dynamics of how people interact with each other.

Laura Foster's Discussion Abstract

Laura Foster is an Assistant Professor of Gender Studies at Indiana University.

Discussion Title: The Making and Unmaking of Patent Ownership: Technicalities, Materialities, and Subjectivities.

Patent ownership is normatively structured as a natural, value-neutral property right necessary for inciting further innovation. Critical ethnographic inquiry, however, becomes useful for unmooring patent ownership from its discursive formations as natural right, while unpacking it as a historical and socio-cultural process that simultaneously reinforces and contests hierarchies of knowledge production. In this talk, I begin at the site of a 2002 U.S. Hoodia patent document, noting its ahistorical and apolitical articulations as a pharmaceutical composition to suppress appetite derived from the Hoodia plant. Challenging the law and economics logics that frame the patent, I suggest that a critical ethnographic study of how a patented object circulates can provide understandings into precise mechanisms of knowledge and power. I then further develop this approach by offering a more critical description of the 2002 U.S. Hoodia patent. This involves briefly noting how the patent is embedded within histories of colonial racial science, indigenous San self-determination, South African neoliberal transformation politics, and gendered and racialized meanings of fat and thin bodies.

In a more particular move, I then take on the technicalities and materialities of patent ownership by comparing how the patented Hoodia invention is translated (or not) from its initial approval in 1998 in South Africa and then later in 2002 in the U.S.. Patent documents, indigenous San peoples' narratives, and ethno- pharmaceutical studies of Hoodia serve as resources in my critical empirical toolkit. This comparison of nation-state jurisdictions also accompanies a discussion of the similarities and differences between "western" forms of patented Hoodia knowledge and indigenous San ways of knowing the plant. Critical ethnographic inquiry enables me to attend to hierarchies between what is considered modern versus traditional knowledge, while also challenging such binaries by recognizing both as similarly indigenous, dynamic, and rooted in ancestral pasts. Through this ethnographic examination, patent ownership emerges as a historical and socio-cultural process shaping, re-fashioning, and being inscribed across multiple scales of nation-state jurisdictions, divergent ways of knowing, and biochemical orderings of plants.

Shu-Yi Oei's Discussion Abstract

Shu-Yi Oei is an Associate Professor of Law ay Tulane University Law School.

Discussion Title: The New Human Equity Transactions.

A number of new financial transactions have recently emerged in which an individual seeking immediate funding grants an investor a percentage of her future earnings in exchange for such funding. For example, such transactions have arisen in the professional sports context, where Fantex, Inc. has offered or plan to offer IPO stock tracking the performance of professional football players Arian Foster, Vernon Davis, and E.J. Manuel, and where the football players have given up a specified percentage of future football-related earnings in exchange for an upfront lump-sum payment funded by the IPO shareholders. These deals are different from traditional loans, because they allow the funding provider to take both the upside and downside risk associated with the recipient's future earnings stream, rather than receiving a predetermined return.

At an instinctual level, these types of transactions in which one sells a percentage of one's future earnings may suggest enslavement, servitude, or bondage relationships. These possibilities have been noted in the popular press and, if they were accurate, would raise clear ethical or constitutional issues, particularly given the historical resonance of slavery and indentured servitude in the United States. This essay is the first in the literature to address the need for a legal framework for evaluating, regulating, and taxing these new financial arrangements. We survey the challenges raised by these new transactions and suggest that an analogy to business equity may be a useful frame through which to analyze the normative desirability of these transactions. Equity characterization compels us to acknowledge that these arrangements may be, in substance, a type of indirect ownership interest in humans mediated through an innovative financial instrument. Equity characterization also suggests new approaches towards taxing and regulating these transactions. This essay constitutes a preliminary roadmap for thinking about the ethical, regulatory, and tax issues raised by these new human equity transactions.

Panel Two: eCRT, Law, and Sexuality

Russell Robinson's Discussion Abstract

Russell Robinson is the Distinguished Haas Chair in LGBT Equity Professor of Law at the University of California, Berkeley.

Discussion Title:Unequal Protection

During the last 30 years, the Supreme Court has steadily diminished the vigor of the Equal Protection Clause. It has turned away people of color who protest systems such as racialized mass incarceration because their oppression does not take the form of a "racial classification." It has diluted the protections of intermediate scrutiny in gender discrimination and abortion cases. And it has turned its back on groups who once benefitted from "animus" review, including people with disabilities and poor people. Meanwhile, the only site of vitality in equal protection jurisprudence is LGBT claims. Yet the Court, writing opinions that are rarely in conversation with one another, has made no effort to justify this growing divide. I call attention to this re-ordered equal protection landscape, which contrasts sharply with the conventional understanding of equal protection tiers of scrutiny.

Specifically, I identify three advantages that LGBT people enjoy compared to virtually every other civil rights constituency: (1) the Court has rigidly used the concept of a "classification" as a gate keeping device, but it has ignored this requirement in sexual orientation cases; (2) LGBT people can invoke animus, a standard that emerged from cases brought by people of color, poor people, and people with disabilities but that the Court no longer recognizes in such cases; and (3) LGBT cases leave open important questions, including the legal standard that would apply to remedial policies based on sexual orientation—quite unlike the Court's adverse resolution of these questions in race cases. These findings demand that law professors and legal scholars reconsider how they teach and write about equal protection.

Jessica Clarke's Discussion Abstract

Jessica A. Clarke is an Associate Professor of Law at the University of Minnesota Law School.

Discussion Title:Inferring Desire

Since 1998, federal courts have been issuing a steady stream of sexual harassment decisions attempting to assign sexual orientations to alleged harassers. Under federal law, sexual harassment is actionable because it is a subspecies of sex discrimination. A man who makes unwanted sexual advances toward a woman discriminates on the basis of sex, courts presume, because he would not have made sexual advances toward another man. In 1998, the Supreme Court ruled that the same presumption is available in a case of same-sex harassment, i.e., a man harassing a man, if there is "credible evidence that the harasser was homosexual." Between 1998 and 2013, federal courts decided 154 cases on whether a harasser was homosexual or experienced same-sex desire, often conflating the two questions.

My empirical assessment of these cases found that courts were relying on overly simplistic assumptions about sexual orientation that were contradicted by social science research. Surprisingly, in searching for evidence of same-sex desire, courts compared the harasser's behavior to an idealized vision of romantic courtship that resonates with the picture of same-sex intimacy drawn by advocates of gay marriage. I also found that these judicial inquiries into desire reinforced biases in favor of heterosexuality. Courts interpreted sexually charged interactions to be devoid of desire when the harasser was involved in a heterosexual marriage, while reading desire into far less suggestive scenarios when the harasser self-identified as nonheterosexual. I argue that courts should avoid inquiries into sexual orientation and desires, which only serve to distract from the goal of sexual harassment doctrine: eliminating discrimination.

Kim Buchanan's Discussion Abstract

Kim S. Buchanan is an Associate Professor of Law at the University of Southern California, Gould School of Law.

Discussion Title:Empiricism and Critical Understandings of Inequality

Facts matter, especially to critical scholars. Here, I'd like to reflect on some of the unexpected ways in which critical and empirical epistemologies have interacted in my scholarship. The most obvious way in which empirical findings enrich antidiscrimination scholarship is to substantiate critical claims that inequality exists, and that it is invidious. For example, the notorious overrepresentation of African-Americans in prison populations is not explained by comparably high levels of lawbreaking; this is an important foundation for racial justice arguments against mass incarceration. Empirical findings can also play another, more subversive role: they may raise questions about whether race, gender and sexuality work the way we think they do. For example, a critical race feminist perspective on sexual assault inspired my skepticism about the conventional wisdom about prison rape: until recently, most scholars, advocates and policymakers believed that prison rape typically involved tough black men raping weaker, less masculine whites. A critical examination of victimization data collected and published by the federal Justice Department suggests that the conventional wisdom is false: victimization data do not suggest that white male inmates are sexually targeted by black aggressors. Masculinity, not race, seems to be the most influential demographic factor affecting inmates' vulnerability. (Moreover, the racial disparities that are empirically substantiated indicate that multiracial inmates, not whites, may be racially targeted for sexual assault by other inmates, while black men may be unusually vulnerable to sexual victimization by staff.) Moreover, the victimization data also revealed a key dynamic that had been almost universally overlooked: in repeated surveys of carceral facilities for men, women and youth, inmates report more sexual victimization perpetrated by women than by men. Moreover, while male inmates describe some of their sex with female staffers as unforced, they also report surprisingly high levels of overt coercion by female staff. While these findings had been public for five years before I wrote about them (and have been replicated in every victimization survey conducted since then), it took a critical race feminist perspective to notice them, bring them to the attention of policymakers, and suggest directions for qualitative research into female sexual perpetration. These findings raise questions about prison rape prevention strategies that assume that women are unlikely to pose a sexual threat to incarcerated males. These findings can also enhance critical understandings about race, gender and sexuality: neither a traditional nor a feminist understanding of gender offers an obvious explanation for such high levels of female sexual perpetration. Finally, this particular convergence of critical and empirical inquiry invites critical investigation of the way stereotypes and inequality may have blinded researchers and policymakers to these counterintuitive findings.

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